In March 2015, I had reported a decision of the Federal Administrative Court (Bundesverwaltungsgericht) dealing with an application to delete the entry of a painting from the Lost Art database, once it had been located. Setting aside the decisions of the First Instance Court and the Administrative Court of Appeal (Oberverwaltungsgericht), the Federal Administrative Court had decided that locating the painting was not enough for the entry to be deleted from the Lost Art database. It widened the mandate of the database and held that the painting can remain registered on the database as long as there is no clarity as to ownership (“Die Suchmeldung ist nicht schon mit dem Auffinden des Gemäldes rechtswidrig geworden, weil noch keine Klarheit über das endgültige Schicksal des Bildes besteht.”). The judgment did not convince me legally, nor did I think it did the parties a service.
I have now come across a case note of Boas Kümper* in a recent issue of Juristenzeitung. Boas Kümper reaches the same conclusion, but his analysis is much deeper and more elaborate than mine, and his criticism of the court much more fundamental. Kümper reviews the jurisdiction of the Federal Constitutional Court (Bundesverfassungsgericht) dealing with information provided and disseminated by state institutions (staatliches Informationshandel). He then applies the guidelines established in the jurisprudence of the Federal Constitutional Court to the Lost Art database case.
In short, Kümper finds that the Federal Administrative Court wrongly applies these guidelines. The cases in which the Federal Constitution Court had developed its guidelines dealt with circumstances where the state institutions have to disseminate information at short notice to deal with potential risks to the public at large, such as a risk of contaminated wine (as in the 1985 diethylene glycol wine scandal). The Lost Art database, however, deals with the systematic and long-term dissemination of information and hence must be distinguished (“Die Erwägungen des BVerwG greifen nämlich mit Blick auf die lostart-Datenbank gerade nicht, denn bei dieser geht es nicht um ein unvorhersehbares, punktuelles Reagieren auf kurzfristige Gefahren- oder Krisensituationen, sondern um eine systematische und auf Dauer angelegte Tätigkeit.“). Only in the event of urgency can the dissemination of information be justified even if an express statutory basis is lacking.
Given the long-term approach of the Lost Art project, it would of course be possible to provide for a statutory basis, which is still missing, by the way. The Federal Administrative Court acknowledges this in passing, and characterizes the Lost Art database as a “public institution, even if not in a technical sense” (“öffentliche Einrichtung im untechnischen Sinne”).
Kümper’s reasoning absolutely convinces me. Given that after a short period of attention on lost art matters generated by the Gurlitt saga, as evidenced for example by the Bavarian legislative initiative to address the limitation issues, the attention of the public at large and of the lawmakers have turned away from these issues. It is therefore unlikely that we will see a statutory basis for the Lost Art database either on a stand-alone basis or as part of a wider Art Restitution Act (the Bavarian proposal for an Art Restitution Act was a misnomer) any time soon. Nor is it likely, given this recent decision of the Federal Administrative Court, that the case law will change in the near future.
*Kümper, Boas: Anmerkung (Case Note) zu BVerG, Urteil vom 19 Februar 2015, 1 C 13.14; JZ (Juristenzeitung) 2015, 1160. An other note that critized the court is Raue, Peter/Munding, Christoph-David: BVerwG-Entscheidung zu Lost Art-Register öffnet Missbrauch Tür und Tor, MMR 2015, 417.
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